Federal and state laws make it illegal to discriminate against job applicants or employees on the basis of their “genetic information.” Indeed, employers may only collect or use genetic data in very limited circumstances. A recent federal court decision makes clear that these laws reach even farther than typical anti-discrimination statutes.

Applicant/Employee Screening and the Legislative Response

Until 2008, when Congress enacted the federal Genetic Information Nondiscrimination Act (“GINA”), it had become increasingly common for employers to screen job applicants for chronic diseases. Employers used the screening as part of an overall strategy to reduce future healthcare insurance costs by obtaining detailed information about the medical histories of applicants and their family members. Employers would reject applicants if it appeared they were more likely to contract a disease or condition based on their family medical history. Some employers even required applicants to submit DNA samples to analyze the risk for certain diseases, such as cancer and diabetes.

After much debate, Congress responded to this growing practice by enacting GINA. GINA prohibits employers from discriminating against employees and applicants with genetic propensities for disease. California followed Congress’s lead in 2011 by amending the Fair Employment and Housing Act to make genetic information a protected characteristic, along with race, sex, martial status, physical/medical condition, and several other categories.

GINA’s Provisions

GINA defines “genetic information” broadly to include an individual’s family medical history, the results of the individual’s or family members’ genetic tests, and the fact that such tests are sought or received. GINA prohibits employers from requesting, much less requiring, employees and applicants to provide genetic information. GINA also forbids employers from analyzing an individual’s genetic information for almost any purpose. GINA further bars workplace discrimination, harassment and retaliation on the basis of genetic data.

There are six narrow exceptions to GINA’s broad protections. These exceptions include when an employee voluntarily provides information about her health history to participate in a company-sponsored wellness program. Other exceptions exist when the employer acquires the information inadvertently (such as when a supervisor overhears an employee discussing a family member’s illness) or when the information is publically available (such as when a supervisor reads an obituary stating that an employee’s relative died of cancer).

To comply with GINA, employers may no longer ask job applicants about their genetic information, or use such information as part of the performance evaluation process. In addition, employers that subject applicants and employees to medical examinations under the Americans With Disabilities Act and California’s FEHA must ensure they do not test for or collect any genetic information.

GINA also requires employers to include the following “safe harbor” language on documents that request employee medical information (such as a medical certification for the employee’s own serious health condition under the FMLA/CFRA) to alert health care providers not to include family medical history:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

Recent Court Decision Interpreting GINA

While GINA has been on the books since 2008, there are surprisingly few court decisions interpreting its provisions. One outstanding question has been whether employers may seek genetic information for purposes other than detecting propensity for disease. In a case of first impression, a federal district court in Georgia recently addressed this issue in Lowe v. Atlas Logistics Group Retail Services.

In that case, the employer, Atlas Logistics, operates storage warehouses for grocery stores. Much to the employer’s dismay, someone began habitually defecating on the floor in one of the warehouses. The employer did not catch the culprit in the act, but believed it had narrowed the suspects down to two employees who worked in the warehouse. Atlas asked both of these employees to submit to cheek swabs, and the employees agreed. Atlas then sent the samples to a laboratory to compare the DNA on the cheek swabs to the DNA of the fecal matter. The DNA testing exonerated the two employees, but they became the object of ridicule among their coworkers because of the testing. Ultimately, the employees sued Atlas for violating their rights under GINA.

Atlas argued in court that GINA was inapplicable, because the purpose of the swab testing was merely to identify the perpetrator of workplace misconduct, not to discriminate against its employees. The judge rejected Atlas’s argument, holding that GINA prohibits broadly genetic testing for any purpose, except for the narrow exceptions defined in the statute.

The jury ultimately awarded each of the two workers $475,000 in emotional distress damages and $1.75 million in punitive damages. While the court will almost certainly reduce the award because GINA caps damages at $300,000 per plaintiff, the verdict will still result in quite a payday for the two humiliated employees.

Tips for Employers

Employers should ensure they do not seek any genetic information in making employment decisions about employees or job seekers. Given the court’s ruling in Atlas, employers should also extend that prohibition to other interactions with employees, including collecting data during workplace investigations. Unless a specific statutory exception applies, employers must resist the urge to ask employees to submit to any form of genetic testing, even for identification purposes.

Employers also should resist the temptation to use any genetic information that they otherwise obtain, such as stray hair strands or nail clippings, in investigating employee misconduct. While television shows like CSI make clear that such testing is possible, GINA and FEHA make equally clear that it is prohibited in the workplace.

Finally, employers should ensure their internal forms requesting medical information contain the GINA safe harbor language when applicable.

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